Nacchio Gets a New Trial

In news that may have repercussions for Bush’s attempt to hide all details of his warrantless wiretapping program, Joseph Nacchio just won a new trial (h/t scribe). Mind you, the reason his trial was overturned does not relate directly to his claim that the Administration retaliated against him because he refused to illegally wiretap Americans. Rather, the Appeals Court overturned his case because he was not allowed to make a case for his expert witness.

A federal appeals court ordered a new trial Monday for former Qwest CEO Joe Nacchio, saying the trial judge wrongly excluded expert testimony important to Nacchio’s defense in his insider trading case.

[snip]

Attorneys for Nacchio told the 10th U.S. Circuit Court of Appeals in December the case against him didn’t meet standards set by previous court rulings.

Nacchio’s attorney, Maureen Mahoney, also told the court that U.S. District Court Judge Edward Nottingham wrongly prevented a defense witness from testifying and that Nottingham’s instructions to the jury were inadequate.

[snip]

At the appeals hearing, the judges repeatedly asked Oestreicher why Nottingham denied Daniel Fischel from testifying in Nacchio’s defense. Prosecutors say the defense didn’t establish the reliability of Fischel’s opinions or disclose how he arrived at them.

Nacchio’s attorneys say Fischel, an expert on corporate law and markets, was a core part of his defense and could have explained to jurors what must be publicly disclosed and that Nacchio’s stock sales were to diversify his portfolio. Mahoney said a reasonable jury hearing testimony from Fischel would have acquitted Nacchio.

So the Appeals Court has not specifically said Nacchio should be able to tell us about being strong-armed to wiretap Americans (that’s not why they accepted his appeal). But given another trial–not to mention the House’s recent confirmation that different carriers responded to government requests differently (that is, AT&Treason happily wiretapped us, while Qwest resisted)–Nacchio might have the opportunity to explain why he thinks he was retaliated against because he believes in the Fourth Amendment.

More Blue Dogs Come Home

In addition to Leonard Boswell, the following Representatives who originally signed the Blue Dog letter to Nancy Pelosi in support of the SSCI bill voted for the House bill today:

  • Rep. Leonard L. Boswell, D-Iowa — Phone: (202) 225-3806, Fax: (202) 225-5608
  • Rep. Marion Berry, D-Ark. — Phone: (202) 225-4076, Fax: (202) 225-5602
  • Rep. Mike Ross, D-Ark. — Phone: (202) 225-3772, Fax: (202) 225-1314
  • Rep. Earl Pomeroy, D-N.D. — Phone: (202) 225-2611, Fax: (202) 226-0893
  • Rep. Melissa Bean, D-Ill. — Phone: (202) 225-3711, Fax: (202) 225-7830
  • Rep. John Barrow, D-Ga. — Phone: (202) 225-2823, Fax: (202) 225-3377
  • Rep. Allen Boyd, D-Fla. — Phone: (202) 225-5235, Fax: (202) 225-5615
  • Rep. Joe Baca, D-Calif. — Phone: (202) 225-6161, Fax: (202) 225-8671
  • Rep. John Tanner, D-Tenn. — Phone: (202) 225-4714, Fax: (202) 225-1765
  • Rep. Jim Matheson, D-Utah — Phone: (202) 225-3011, Fax: (202) 225-5638
  • Rep. Brad Ellsworth, D-Ind. — Phone: (202) 225-4636, Fax: (202) 225-3284
  • Rep. Charlie Melancon, D-La. — Phone: (202) 225-4031, Fax: (202) 226-3944
  • Rep. Dennis Moore, D-Kan. — Phone: (202) 225-2865, Fax: (202) 225-2807
  • Rep. Zack Space, D-Ohio — Phone: (202) 225-6265, Fax: (202) 225-3394

Altogether, 15 of those who originally signed the letter voted with their party today, plus Lincoln Davis, who voted present. They picked up Lampson, who voted against the bill. But in all, that’s a pretty profound turn.

Notably, Barrow, Boswell, Ellsworth, and Space were targeted by Blue America. I guess that leaves just Carney and Shuler as candidates to have an ad run against them for opposing civil liberties.

If any of these guys who changed their vote are your Representative, please call them and thank them for supporting their party on this important vote.

Update: Stole the list with phone numbers from McJoan. Also, as McJoan suggests, it’s also probably a good idea to thank the Freshmen for refusing to be cowed by the Republican fearmongering. Read more

The Blue Dogs (Some of Them, at Least) Come Home

Update: We win, 213-197-1, with the 10 Dem no votes a mix of Blue Dogs and Progressives. Good work, Congress!! 

Some time ago, 21 Blue Dog Democrats wrote a letter in support of the Senate bill on FISA. The Republicans (including Doc Hastings in today’s debate) have pointed to that letter in support of their argument for the Senate bill.

But the Blue Dogs–at least some of them–are starting to come home (perhaps because of the pressure that Blue America is preparing to put on them for voting against civil liberties). Today, Leonard Boswell spoke in favor of the vastly better House bill on FISA, calling for the others that signed the letter to support the Democratic bill as well.

So yes, I like 20 others, signed a letter of concern. By the way, it was not a Blue Dog letter, a Blue Dog position but individuals, some of whom were Blue Dogs. Over the course of past weeks, a credit to Chairman Reyes and Chairman Conyers and our super staff, an acceptable solution has been found. It makes FISA – supports FISA and gives protection to those who assist within the provisions of the law. For example, those who feel their civil rights have been violated can seek justice and telecoms who feel they have complied with the law, a judge can review the classified evidence and decide. This means to me that the Constitution and civil rights are protected and telecoms who are asked under pressure to assist in an emergency can know that classified evidence will be seen by a judge… The bill provides telecom companies a way to present their defense in secure proceedings in a district court without the administration using state secrets to block the defense. A company simply doing its duty following the law, this bill ensures they they will not be punished and I urge everyone who signed the letter with me to support this resolution.

Welcome home Congressman Boswell–I hope you’re back to stay.

FISA: FBI Overrides Constitutional Objections

Democrats just defeated (with 217 votes) an effort by Republicans to consider the Senate FISA bill before the House considers the House bill today.

While we’re watching lots of bloviating on FISA in the House, I thought I’d call attention to something Mary found yesterday.

The FBI twice disregarded a secret court’s constitutional objections and obtained private records for national-security probes, a U.S. inspector reported on Thursday.

The Justice Department’s Inspector General made the disclosure in reviews of the FBI’s powers to obtain information such as phone records or credit-card data in terrorism probes or other security investigations.

[snip]

The report took particular note of two occasions in which a secret court that oversees electronic surveillance rejected FBI requests to obtain records.

The court was concerned that doing so could interfere with rights protected by the First Amendment of the Constitution which guarantees freedom of speech, religion and association and the right to petition the government.

After the rejections, the FBI used separate authority to get the information without the court’s approval, relying on so-called National Security Letters — even though that authority also had First Amendment guidelines.

Unfortunately, this is a detail I’ve only seen highlighted in Reuters’ coverage of the IG report on PATRIOT Act provisions. It’s an example that really proves the necessity of the additional protections included in the House bill–without FISC reviewing what DOJ is doing, we’re going to see DOJ override Constitutional concerns more and more often.

Update: nolo has the passage from the OIG report on this here.

Conyers introducing the bill: [PAA] transferred power of independent review from courts to AG.

The Administration tells us they have nothing to hide. If that’s true, they should have no problem with the enactment of this Blue Ribbon Commission. We learned yesterday that FBI continuing to misuse PATRIOT Act provisions. We learned four days ago NSA using massive net.

Lamar Smith starts off by lying through his teeth, again claiming that wiretapping on the kidnappers in Iraq was held up because of FISA–rather than because Paul Clement had left work early.

Feeney makes up stuff about the bill.

Jim Marshall engages in colloquy with Conyers and Reyes clarifying how the FISA suits would go forward.

Nadler we have heard false and misleading statements from our colleagues. By solving the State Secrets problem, if they need it and if they obeyed the law.

Read more

House to Go Into Secret Session

At the request of the Republican leadership (who want to say something to the entire House that can’t be said publicly), the House is going to go into a secret session to debate FISA.

Here’s what John Conyers had to say about the secret session:

The more my colleagues know, the less they believe this Administration’s rhetoric. As someone who has chaired classified hearings and reviewed classified materials on this subject, I believe the more information Members receive about this Administration’s actions in the area of warrantless surveillance, the more likely they are to reject the Administration’s scare tactics and threats. My colleagues who joined me in the hearings and reviewed the Administration’s documents have walked away with an inescapable conclusion: the Administration has not made the case for unprecedented spying powers and blanket retroactive immunity for phone companies.

Whether this is a worthwhile exercise or mere grandstanding depends on whether Republicans have groundbreaking new information that would affect the legislative process. There must be a very high bar to urge the House into a secret session for the first time in 25 years. I eagerly await their presentation to see if it clears this threshold. As someone who has seen and heard an enormous amount of information already, I have my doubts.

I’m frankly optimistic about this development. I think this gives the Democratic members of HJC and HPSCI an opportunity to explain to their colleagues what they saw in the justifications for the wiretap program and what they heard from the telecom executives who gave secret briefings in the last several weeks. For the immediate debate, the issue is winning over the Blue Dogs who–at least currently–appear to be channeling their Democratic past. And it seems like this argument is fairly easy to make.

At the very least, we know the telecoms continued to wiretap in the days after March 10, 2004, when White House Counsel Alberto Gonzales authorized the program rather than Acting AG Jim Comey. We know the telecoms didn’t follow the clear guidelines about when they can accept the Administration’s assurances that a program is legal.

That seems like an important part of the debate.

HJC Calls Bull on SSCI’s Conclusions

The Democrats on HJC have been doing their homework while the Republicans have been fear-mongering. They’ve read the documents related to the illegal wiretapping program, held secret hearings with the telecom companies, and called bull on several of the conclusions formed by SSCI. Not surprisingly, this letter justifies the FISA alternative which will come up for a vote later this afternoon.

The letter reveals the timing of the hearings with the telecom companies–but does not reveal whether the Republicans deigned to attend.

In recent weeks, Judiciary Committee members have received classified briefings from intelligence and Justice Department officials on the Administration’s warrantless surveillance program; we have been provided access to the same classified documents on the program that were provided months ago to the Senate Intelligence and Judiciary Committees (and, more recently, to the House Permanent Select Committee on Intelligence); and the Committee has conducted lengthy and extensive classified hearings on February 28 and March 5 to hear testimony from telecom and Administration officials. A key focus of that effort was the issue of retroactive immunity for phone companies that participated in the warrantless surveillance program. [my emphasis]

The hearings appear to have taken place during that period when the Republicans had taken their toys and gone home–so it’s likely, by refusing to let their staffers participate, the Republicans avoided learning the details that the Democrats learned [Update: I’ve been informed the Republicans attended the hearings]. And note–they still seem to be focused on phone companies, not the email carriers who are the center of the new programs.

The letter also confirms what we’ve already known–not all carriers acted the same in response to Administration requests.

Read more

Think Outside the Box

The ACLU says this about the House’s proposed compromise on FISA.

While we still have concerns about aspects of the new House FISA bill, the American Civil Liberties Union is encouraged by the new draft – particularly the language on state secrets, which would allow the cases to go forward while allowing the telecommunications companies to assert any defenses. We commend House leadership for keeping the courthouse door open.

I think this is what they’re referring to:

SEC. 802. PROCEDURES FOR COVERED CIVIL ACTIONS.
(a) INTERVENTION BY GOVERNMENT.— In any covered civil action, the court shall permit the Government to intervene. Whether or not the Government intervenes in the civil action, the Attorney General may submit any information in any form the Attorney General determines is appropriate and the court shall consider all such submissions.

(b) FACTUAL DETERMINATIONS.—In any covered civil action, the court shall review in accordance with the procedures set forth in section 106(f) any evidence or information with respect to which a privilege based on state secrets is asserted, whether that evidence or information is submitted by any party or the Government. The court may, on motion of the Attorney General, take any additional actions the court deems necessary to protect classified information. In order to ensure full argument of all legal issues, the court shall, to the extent practicable and consistent with national security, request that any party present briefs and arguments on any legal question the court determines is raised by such a submission even if that party does not have full access to such submission. The court shall consider whether the employment of a special master or an expert witness, or both, would facilitate proceedings under this section.

(c) LOCATION OF REVIEW.—The court may conduct the review in a location and facility specified by the Attorney General as necessary to ensure security.

(d) REMOVAL.—A covered civil action that is brought in a State court shall be deemed to arise under the Constitution and laws of the United States and shall be removable under section 1441 of title 28, United States Code.

Read more

“Or His Designee”

I noticed something really funny in the AT&T response to Dingell and friends that MadDog linked to. In a passage describing why the telecoms should be granted immunity for abetting the Administration in its illegal wiretap program, AT&T cites 18 USC 2411(2)(a)(ii) to argue that it is immune from prosecution.

The same principle–that a telecommunications carrier who cooperates in good faith with the authorized law enforcement or intelligence activities considered lawful by the executive–underlies numerous defenses and immunities reflected in existing statutory and case law. For example, 18 U.S.C. 2511(2)(a)(ii) provides that "notwithstanding any other law," carriers are authorized to provide "assistance" and "information" to the government whenever the communications service provider receives a "certification" from the Attorney General or his designee "that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required. When the Attorney General furnishes an appropriate certification, Congress has decreed that "no cause of action shall lie in any court." It does not matter whether the Attorney General’s judgment reflected in the certification is ultimately determined to have been right or wrong: as long as the carrier acted pursuant to such a certification, national policy forbids a lawsuit. [emphasis AT&T’s]

Now compare their citation of 18 U.S.C. 2511(2)(a)(ii) with the actual statute.

(ii) Notwithstanding any other law, providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with—

(A) a court order directing such assistance signed by the authorizing judge, or

(B) a certification in writing by a person specified in section 2518(7) of this title or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required,

Do you see the difference? AT&T has unilaterally rewritten "a person specified in section 2518(7) of this title or the Attorney General" to say "Attorney General or his designee." (And if you’re wondering, 2518(7) doesn’t say anything about "designees" either. Update: yes it does–though it specifies that they have to be investigative officers.) Read more

“Dude, that’s what they want.”

Babak Pasdar’s affidavit on Verizon’s Quantico Circuit reveals something about the government’s back-door access to all of Verizon’s data, one which might be familiar to you from the missing White House emails saga.

When the Steven McDevitt tried to reconstruct all OVP the emails from the period when Scooter Libby and Dick Cheney were coordinating their cover story, he discovered no logs from the emails of that period existed; thus, there’s no way to be sure that the 250 pages of email turned over to Patrick Fitzgerald constitute all the missing emails.

Golly. What a surprise, then, that the government didn’t want any logs taken of its back-door access to (presumably) Verizon’s data.

Pasder notes that (presumably) Verizon’s log collection system was very primitive.

I specifically remembered being shocked at the primitiveness and inadequacy of their log collection system. After all, this was a major carrier. After a cursory overview I was able to point out to C1 and C2 that their log collection system might not have been collecting all logs. This surprised C1 and C2. A subsequent test showed that the client’s log collection system was missing as many as 75% of the logs being generated, essentially rendering the whole system useless.

Mind you, that covered the whole system, not just the Quantico Circuit the government was using to access the system. But when Pasdar describes learning about the Circuit itself, he explains that there was no logging system for the Circuit. None.

This is a little narrative he tells about learning of the Circuit when testing the firewalls of the new system he was putting in.

At one point I overheard C1 and C2 talking about skipping a location. Not wanting to do a shoddy job I stopped and said "we should migrate all sites."

C1 told me this site is different.

I asked, "Who is it? Carrier owned or affiliate?"

C1 said, "This is the ‘Quantico Circuit.’"

Pasdar goes on to learn that this is a 45 mega bit per second circuit that supports data and voice communication. The consultants he was working with made it clear they weren’t supposed to put any access controls on it.

C1 said that this circuit should not have any access control. He actually said it should not be firewallled.

I suggested to migrate it and implement an "Any-Any" rule. ("Any-Any" is a nickname for a completely open policy that does not enforce any restrictions.) That meant we could log any activity making a record of the source, destination and type of communication. It would have also allowed easy implementation of access controls at a future date. "Everything at least SHOULD be logged," I emphasized.

C1 said, "I don’t think that is what they want."

Read more

The Quantico Circuit

Yesterday, Wired’s Threat Level reported on the Quantico Circuit, what appears to be Verizon’s back door to give the government complete access to our telecommunications.

A U.S. government office in Quantico, Virginia, has direct, high-speed access to a major wireless carrier’s systems, exposing customers’ voice calls, data packets and physical movements to uncontrolled surveillance, according to a computer security consultant who says he worked for the carrier in late 2003.

"What I thought was alarming is how this carrier ended up essentially allowing a third party outside their organization to have unfettered access to their environment," Babak Pasdar, now CEO of New York-based Bat Blue told Threat Level. "I wanted to put some access controls around it; they vehemently denied it. And when I wanted to put some logging around it, they denied that."

Pasdar won’t name the wireless carrier in question, but his claims are nearly identical to unsourced allegations made in a federal lawsuit filed in 2006 against four phone companies and the U.S. government for alleged privacy violations. That suit names Verizon Wireless as the culprit. [my emphasis]

To which John Dingell and friends respond, this is another reason not to pass telecom immunity.

Because legislators should not vote before they have sufficient facts, we continue to insist that all House Members be given access to the necessary information, including the relevant documents underlying this matter, to make an informed decision on their vote. After reviewing the documentation and these latest allegations, Members should be given adequate time to properly evaluate the separate question of retroactive immunity.

Yeah, and while we’re at it, let’s figure out why the email providers are actually opposed to retroactive immunity. 

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